Opinion
No. CV 07 2010389
October 19, 2007.
MEMORANDUM OF DECISION
I. Introduction
The case presently before the court arises out of an alleged trip and fall of March 26, 2005. The plaintiff, George Joseph, brought a three-count complaint sounding in negligence against the defendants, UIL Holdings Corporation, Aspen Glen Apartments (hereinafter referred to as "Aspen Glen") and Hamden Developers, LLC (hereinafter referred to as "Hamden Developers"). The complaint has a return date of April 17, 2007. Aspen Glen and Hamden Developers filed an apportionment complaint dated August 16, 2007 against Southern New England Telephone Company ("SNET") and ATT Corporation ("ATT"); presently before the court is the motion to dismiss the apportionment complaint filed by the apportionment defendants, on the basis that the court lacks jurisdiction based on the untimely filing of the apportionment complaint.
Neither the motion to dismiss nor the accompanying memorandum of law identify whether the basis for the motion is lack of subject matter jurisdiction or lack of personal jurisdiction; as the memorandum does make reference to a lack of jurisdiction over the apportionment defendants, the court has considered the basis for the motion to be lack of personal jurisdiction.
The apportionment complaint was served on SNET on August 21, 2007, and on ATT on August 22, 2007. Officer's Return, dated August 21, 2007. It was personally given to the marshal for service on August 16, 2007. Supplemental Affidavit of Service, August 23, 2007.
II. Discussion of Law
Connecticut General Statutes § 52-102b(a) provides in relevant part as follows:
A defendant . . . may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint.
In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 35-36 (2004), the Connecticut Supreme Court held that the 120-day time limitation was a mandatory time limitation which must be complied with, unless there is an equitable reason such as waiver or consent of parties to excuse the compliance. The Lostritto decision resolved the split of authority in the trial courts as to whether the 120-day limitation was mandatory or directory. The court found no equitable reason to excuse compliance with the 120-day limitation in that case, rejecting the argument of the apportionment plaintiffs that the uncontested extension of time to file an apportionment complaint granted by the trial court had operated as a waiver, as the apportionment defendants were not parties at the time and had no notice of the motion for extension of time. Id. The Lostritto court, after careful analysis, determined that the failure to comply with the 120-day window of § 52-102b implicated personal jurisdiction rather than subject matter jurisdiction and affirmed the judgments of the trial court granting the motions to dismiss the apportionment complaint. Id. at 33.
In Pedro v. Miller, 281 Conn. 112 (2007), the Connecticut Supreme Court, once again faced with the issue of non-compliance with the 120-day time limitation, allowed for another equitable reason to excuse compliance with the 120-day time limit, beyond waiver and consent. In Pedro, the plaintiff filed a lawsuit, returnable February 18, 2003, against the owner and operator of a motor vehicle for injuries allegedly sustained in a motor vehicle accident; by Amended Complaint June 29, 2004, the plaintiff alleged that during her treatment for the injuries she sustained in the motor vehicle accident, she suffered from a cerebrospinal fluid leak. The defendants/apportionment plaintiffs served an apportionment complaint for medical malpractice against the treating physician on October 22, 2004. The trial court granted the motion to dismiss the apportionment complaint, on the basis that it was served more than 120 days after the return date of the original complaint. The Connecticut Supreme Court reversed, finding compelling equitable considerations to toll the 120-day time limit. The court, noting that it was impossible for the defendants/apportionment plaintiffs to serve the apportionment complaint within the 120 days because the apportionment plaintiffs had no factual or legal basis for seeking apportionment until the plaintiff filed the amended complaint after the 120 days adding the additional injury, found the new claims alleged in the Amended Complaint to be an equitable reason justifying excusal from compliance with the 120-day limit. Id. at 118-19. Importantly, the court in Pedro made clear that while waiver and consent are classic exceptions to lack of personal jurisdiction, they are merely examples of equitable exceptions.
Following the Pedro decision, at least one trial court has addressed the issue at hand. In Frey v. Escalante, Superior Court, judicial district of New London at New London, Docket No. CV06 5100303 (May 2, 2007, Hurley, J.), the court granted the apportionment defendant's motion to dismiss the apportionment complaint, where the apportionment complaint was not filed within the 120 days; the court, while recognizing that equitable considerations other than waiver or consent could toll the 120-day limit, was not presented with any equitable considerations to take into account.
In the present matter, the defendants/apportionment plaintiffs argue that the 120-day time limitation is directory rather than mandatory. The court rejects that argument in light of the clear case law to the contrary. The defendants/apportionment plaintiffs argue, in the alternative, that the apportionment complaint was in the hands of the marshal within the 120-day time limitation, and that the "savings statute" applies. That argument must also fail. Even assuming that the apportionment complaint, dated August 16, 2007, was in fact on the hands of the marshal on that same date, it was too late, as the 120th day following the April 17, 2007 return date is Wednesday, August 15, 2007. The apportionment complaint should have been served, or in the hands of the sheriff, within the 120 days, i.e., on or before August 15, 2007, for the 120-day requirement to have been satisfied.
Connecticut General Statute § 52-593a[a] provides "a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal . . . and the process is served . . . within thirty days of the delivery."
When a period of time is to be calculated from a particular date or event, the day or date of that event is excluded from the computation. See e.g. First Federal Savings and Loan Ass'n. of Rochester v. Pellechia, 37 Conn.App. 423, 427 (1995). As such, the court excluded the return date of April 17, 2007 in its computation of the 120 days.
The word within . . . is of critical importance. The meaning of within is not longer in time than; Webster's New International Dictionary (2d Ed.); not later than; 69 C.J. 1315; 45 Words Phrases (Perm. Ed.), p. 378. The word within is almost universally used as a word of limitation, unless there are other controlling words in the context showing that a different meaning was intended." (Citations omitted; internal quotation marks omitted.) First Federal Savings and Loan Ass'n. of Rochester v. Pellechia, supra, 37 Conn.App. 426.
In the present matter, the defendants/apportionment plaintiffs make no argument that there are any equitable reasons to excuse compliance with the 120-day time limit, nor is one apparent, with the exception being that the defendants/apportionment plaintiffs missed the savings statute by only one day. This court does not recognize that as an equitable reason to toll the 120-day requirement.
Accordingly, the motion to dismiss is granted.